# Third District Court of Appeal

State of Florida

Opinion filed February 15, 2017

. Not final until disposition of timely filed motion for rehearing.

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No. 3D15- 1067

Lower Tribunal No. 13-4491

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### Progressive American Insurance Company,

Appellant,

vs.



### Eduardo J. Garrido D.C. P.A., etc.,

Appellee.

An Appeal from the County Court for Miami-Dade County, Michaelle

Gonzalez-Paulson

, Judge.

Kubicki Draper, P.A., and Betsy E. Gallagher and Michael C. Clarke

(Tampa), for appellant.

Christian Carrazana, P.A., and Christian Carrazana, for appellee.

Before SUAREZ, C.J., and LAGOA and SCALES, JJ.

SCALES, J.Appellant, defendant below, Progressive American Insurance Company

(“Progressive”), appeals a final summary judgment of the Miami-Dade County

Court that both (i) declared a portion of Florida’s PIP statute unconstitutional as

applied to chiropractors; and (ii) determined that, in the absence of an “emergency

medical condition” diagnosis, Florida’s PIP statute allows an insured to recover up

to $10,000 in PIP benefits. The county court certified the constitutional issue to us

as a question of great public importance. We accepted jurisdiction, 1 and we reverse

the county court’s final summary judgment.

I. Facts

In February of 2013, Progressive’s insured, Alejandro Godoy, was involved

in a car accident in Miami. Godoy suffered personal injuries and began treatment

with chiropractor Eduardo Garrido, the Appellee and plaintiff below. Godoy

assigned to Garrido his PIP benefits under Godoy’s Progressive policy, and

Garrido submitted to Progressive invoices totaling $6,075.12 for his treatment of

Godoy.

Progressive paid Garrido $2,500 in PIP benefits, but declined to pay Garrido

any further PIP benefits because there had been no determination made by an

authorized physician under section 627.736(1)(a)3. of the Florida Statutes that

Godoy suffered an emergency medical condition (“EMC”). 2 Progressive based its

1 Fla. R. App. P. 9.160(e)(2).

2refusal to pay in excess of $2,500 in benefits on section 627.736(1)(a)4., which

limits PIP benefits to $2,500 “if a provider

. . . determines that the injured person

did not have an emergency medical condition.” Progressive reasoned that, because

no authorized physician had diagnosed Godoy with an EMC, its PIP liability was

limited to $2,500.

In response to Progressive’s refusal to pay Garrido more than $2,500,

Garrido filed the instant declaratory judgment action in Miami-Dade County

Court. Garrido’s complaint contained three counts. In Count I, Garrido sought a

declaration that the full $10,000 PIP benefit applied to the claim at issue, despite

the absence of a determination by an authorized medical provider that Godoy

suffered an EMC.

In Counts II and III of his complaint, Garrido alleged that the exclusion of

chiropractors from the list of professionals, scheduled in section 627.736(1)(a)3.,

that are authorized to diagnose a patient with an EMC is unconstitutional as

applied to chiropractors on both equal protection and due process grounds. After

the inception of his lawsuit, Garrido filed an affidavit in support of his motion for

summary judgment in which he purported to have diagnosed Godoy with an EMC,

2 An emergency medical condition is defined as “a medical condition manifesting

itself by acute symptoms of sufficient severity, which may include severe pain,

such that the absence of immediate medical attention could reasonably be expected

to result in any of the following: (a) Serious jeopardy to patient health. (b) Serious

impairment to bodily functions. (c) Serious dysfunction of any bodily organ or

part.” § 627.732(16), Fla. Stat. (2013).

3despite not being authorized to provide such diagnosis under section

627.736(1)(a)3.

The trial court entered final summary judgment for Garrido, concluding that

the statute was unconstitutional as applied to chiropractors on both equal

protection and due process grounds. The trial court also determined that Garrido’s

diagnosis of Godoy with an EMC was “legally sufficient” to trigger the availability

of Progressive’s PIP policy limit of $10,000, and certified to us the following

question of great public importance:

IS THE OMISSION OF CHIROPRACTORS FROM THE LIST OF

HEALTH CARE PROFESSIONALS AUTHORIZED TO

DIAGNOSE AN EMERGENCY MEDICAL CONDITION UNDER

§ 627.736(1)(a)(3), FLA. STAT. (2013) [stet] UNCONSTITUIONAL

AS APPLIED TO CHIROPRACTORS ON THE GROUNDS OF

EQUAL PROTECTION AND DUE PROCESS UNDER THE

FLORIDA CONSTITUTION?

A separate panel of this Court accepted jurisdiction. We answer the question

in the negative and reverse the trial court’s summary final judgment for Garrido.

II. Analysis 3

A. Relevant Statutory Backdrop

3 In all respects, the trial court’s grant of summary judgment is based on pure

questions of law. Therefore, we review the judgment de novo. Scott v. Williams

, 107 So. 3d 379, 384 (Fla. 2013); Major League Baseball v. Morsani

, 790 So. 2d

1071, 1074 (Fla. 2001).

4For decades, in addition to providing death benefits under section

627.736(1)(c), all PIP insurance policies written in Florida have been required to

provide up to $10,000 in benefits for an insured’s covered medical expenses under

section 627.736(1)(a) and for an insured’s loss of income and earning capacity

under section 627.736(1)(b).

In 2012, the Florida Legislature enacted Laws of Florida 2012-197 (the

“2012 PIP Act”) which, among other things, amended the PIP statute’s medical

benefits provisions to limit the availability of the full $10,000 in PIP medical

benefits to only those injured persons diagnosed with an EMC. The Legislature

accomplished this change by adding two subsections to section 627.736(1)(a) that

are relevant to this case: (i) section 627.736(1)(a)3. specifically identifies which

medical professionals can make an EMC diagnosis so as to trigger the $10,000

benefit availability; and (ii) section 627.736(1)(a)4. limits available PIP medical

benefits to $2,500 if a medical provider determines that the injured person does not

have an EMC. 2012 PIP Act; § 10.

Section 627.736(1)(a)3. provides that up to $10,000 in PIP medical benefits

are available if the injured person is diagnosed with an EMC by one of the

following professionals: (i) a physician licensed under chapter 458 (medical

doctor) or chapter 459 (osteopathic physician), (ii) a dentist licensed under chapter

5466, (iii) a physician assistant licensed under chapter 458 or 459, or (iv) an

advanced registered nurse licensed under chapter 464.

Section 627.736(1)(a)4. limits PIP medical benefits to $2,500 if any medical

provider (including chiropractic physicians licensed under chapter 460) eligible to

receive PIP reimbursement benefits determines that an injured person does not

have an EMC. The statute, however, is silent as to what PIP benefits are available

in the event of no EMC diagnosis whatsoever.

B. The Trial Court’s Order

Under this statutory scheme a chiropractor is authorized to make a no-EMC

diagnosis, but is not authorized to make a determination that an injured person has

an EMC. Determining as a matter of law that the statutory scheme treats

chiropractors differently from what it characterized as similarly situated persons

–

i.e., licensed medical providers who are authorized to provide EMC diagnoses

–

the trial court concluded that this distinction violates chiropractors’ equal

protection rights because there exists no rational basis for the distinction.

Underpinning the trial court’s conclusion is its determination that the legitimate

governmental interest advanced by the statute “is to provide greater coverage

where the injured person had an EMC.” The trial court also summarily concluded

that the statutory scheme violates chiropractors’ due process rights because the

statute lacks a rational basis under an equal protection analysis.

6As a matter of statutory construction, the trial court also determined that,

because no medical provider issued either an EMC or no-EMC diagnosis to

Godoy, section 627.736(1)(a) requires Progressive to make available the full

$10,000 in PIP medical benefits.

C. The Constitutional Issue

– The Certified Question

1. The Rational Basis Test in an Equal Protection Challenge

We note that the trial court employed the appropriate test to determine the

statute’s constitutionality. A court must analyze an equal protection challenge that

does not involve a fundamental right or suspect classification under the rational

basis test. Estate of McCall v. U.S.

, 134 So. 3d 894, 901 (Fla. 2014). “To satisfy

the rational basis test, a statute must bear a rational and reasonable relationship to a

legitimate state objective, and cannot be arbitrarily or capriciously imposed.” Id. 4

The Legislature has the power to establish classifications, to make

distinctions among persons or groups, without running afoul of equal protection

law. Hechtman v. Nations Title Ins. of N.Y.

, 840 So. 2d 993, 996-97 (Fla. 2003)

(upholding under rational basis test distinction between attorney and non-attorney

title insurance agents); State Dep’t of Ins. v. Keys Title & Abstract Co.

, 741 So. 2d

599, 601-02 (Fla. 1st DCA 1999). Courts “are obligated to accord legislative acts a

4 As the trial court notes in its order, a separate due process analysis is unnecessary

because the equal protection and substantive due process analyses mirror each

other. Warren v. State Farm Mut. Auto. Ins. Co.

, 899 So. 2d 1090, 1096 (Fla.

2005).

7presumption of constitutionality and to construe challenged legislation to effect a

constitutional outcome whenever possible.” Fla. Dep’t of Revenue v. Howard

, 916

So. 2d 640, 642 (Fla. 2005). There is a strong presumption of validity if there is a

rational relationship between the disparity of treatment of those persons or groups

and a legitimate governmental objective. City of Fort Lauderdale v. Gonzalez

, 134

So. 3d 1119, 1121 (Fla. 4th DCA 2014) citing Heller v. Doe

, 509 U.S. 312, 319-20

(1993). Some measure of disparate treatment or inequality is constitutionally

tolerable. Duncan v. Moore

, 754 So. 2d 708, 712 (Fla. 2000); Acton v. Ft.

Lauderdale Hosp.

, 440 So. 2d 1282, 1284 (Fla. 1983). The burden on the plaintiff,

therefore, is to demonstrate that there is no rational basis for the alleged disparity

by showing that the statute intentionally and improperly treats him, her or it in a

different manner from similarly situated persons or groups. Miller v. State

, 971 So.

2d 951, 952 (Fla. 5th DCA 2007).

Courts locate their rational basis test analysis “in a light deferential to

Legislative action.” Warren

, 899 So. 2d at 1096. When applying the rational basis

test, courts “undertake only a limited review that is highly deferential to the

legislature’s choice of ends and means.” Silvio Membreno & Fla. Ass’n of

Vendors, Inc. v. City of Hialeah

, 188 So. 3d 13, 22 (Fla. 3d DCA 2016). 5 The

5 The ordinance at issue in Silvio Membreno was challenged under substantive due

process grounds. The same rational basis test applies to an equal protection

challenge. Silvio Membreno

, 188 So. 3d at 19-20. In Silvio Membreno

, Judge

Logue has provided both an academic synthesis of and a practical approach to

8statute’s challenger must “prove that there is no conceivable factual predicate

which would rationally support the law.” Id. at 25 (internal quotations and citations

omitted; emphasis in original). Courts are required to give great deference to

legislative policy choices, and it constitutes reversible error for a trial court to

subject legislative fact-finding to courtroom fact-finding standards. Id. at 26-27. In

this vein, and recognizing the hallmark constitutional principle of separation of

powers, even laws that a judge perceives “as unwise or unfair” pass constitutional

muster under the rational basis test. Id. at 29.

2. Application of the Rational Basis Test to the Subject Legislation

To prevail, Garrido must show that “there is no conceivable factual

predicate which would rationally support the law.” Id. at 25 (internal quotations

and citation omitted; emphasis in original). In other words, Garrido has the burden

to establish that there is no reasonable relationship between the subject statute’s

treatment of chiropractors and a valid governmental objective.

The record reflects that the objective of section 10 of the 2012 PIP Act is to

reduce fraud in order to lower the cost of insurance premiums. 6 To achieve this

Florida’s rational basis test. We note that, when the trial court entered its order on

appeal, it

did not have the benefit of Silvio Membreno ’s incisive rational basis practicum.

6 We note that during the proceedings below, pursuant to rule 1.071 of the Florida

Rules of Civil Procedure and section 86.091 of the Florida Statutes, Garrido gave

the required notice to the Florida Attorney General of the constitutional question in

this case. The Attorney General did not join the case as a party or otherwise

9objective, the legislation limited the availability of the full $10,000 medical benefit

to those injured persons who suffered an EMC as the result of an automobile

accident.

Further to achieve this objective, the Legislature expressly: (i) defined what

medical conditions constitute an “EMC” (section 627.732(16)); see footnote 2,

supra ), (ii) limited which medical professionals were authorized to diagnose an

injured insured with an EMC (section 627.736(1)(a)3.), and (iii) restricted medical

benefits to $2,500 for those persons who were affirmatively diagnosed as not

having an EMC, with such no-EMC diagnosis being permitted by a broader range

of medical professionals than those authorized to provide an affirmative EMC

diagnosis (section 627.736(1)(a)4.).

These provisions all bear a reasonable relationship to the statute’s objective.

It is entirely reasonable that fraud will be reduced by limiting the full $10,000 PIP

benefit to only those claimants who

– as diagnosed by specifically identified

medical providers

– have suffered an EMC. Under constitutional equal protection

analysis, our inquiry is not whether we believe chiropractors are qualified to

provide an EMC diagnosis and, therefore, should have been included in section

627.736(1)(a)3.’s statutory schedule. Indeed, it is certainly arguable that

chiropractors are as qualified to provide an EMC diagnosis as some of the other

participate in the proceedings. Ordinarily, the Court would have the benefit of the

Attorney General’s defense of the constitutionality of a Florida statute.

10professionals authorized by the statute to provide such a diagnosis. But the

rational basis test does not allow judicial fact-finding to replace legislative factfinding. Silvio Membreno

, 188 So. 3d at 26. We must presume that the Legislature

conducted its own evaluation of the respective professionals’ qualifications,

especially considering that throughout section 627.736(1)(a), each specific

profession is expressly referenced by the chapter of the Florida Statutes that

regulates the qualifications of the profession. When no suspect class or

fundamental right is implicated, our inquiry is limited to whether the law bears a

reasonable relationship to a legitimate governmental objective. McCall

, 134 So. 3d

at 901. Plainly, the reduction of fraud in order to lower the cost of insurance

premiums is a valid governmental objective. See Warren

.

Within this rational basis context, we also conclude that chiropractors are

not similarly situated to other medical providers entitled to make an EMC

diagnosis, as set forth in section 627.736(1)(a)3., by virtue of their respective

training, licensing and scope of professional practice. Strohm v. Hertz Corp./Hertz

Claim Mgmt.

, 685 So. 2d 37, 40 (Fla. 1st DCA 1996). The Court in Strohm relied,

in part, on the discussion in Clair v. Glades County Board of Commissioners

, 649

So. 2d 224 (Fla. 1995), which examined the difference in the scope of practice

between chiropractors and other medical providers. Strohm

, 685 So. 2d at 40.

Thus, section 627.736(1)(a)3. makes the durable legislative distinction between

11chiropractors and other, identified medical providers that is relevant to the statute’s

purposes. See City of Miami v. Haigley

, 143 So. 3d 1025, 1034 (Fla. 3d DCA

2014).

The requisite reasonable relationship exists between the Legislature’s

objectives and its exclusion of chiropractors from the list of medical providers

authorized to provide an affirmative EMC diagnosis. We therefore answer the

certified question in the negative.

D. The Statutory Issue

– the Benefit Limit Absent an EMC or No-EMC

Diagnosis

Because it is undisputed that Garrido is not a medical professional

authorized to provide an EMC and, because we have concluded that section

627.736 (1)(a)3.’s requirements regarding an EMC diagnosis are not

unconstitutional as applied to chiropractors, it follows that Garrido’s purported

EMC diagnosis of Godoy

– provided by Garrido in an affidavit filed in the trial

court

– is insufficient to trigger the availability of $10,000 in PIP benefits. The

trial court determined, however, as a matter of statutory construction, that even if

Garrido could not diagnose Godoy with an EMC, Progressive nevertheless was

liable for the full $10,000 in PIP benefits.

The trial court reasoned that the statutory scheme provided no specific

guidance for when, as here, an injured person received neither an EMC diagnosis

12nor a no-EMC diagnosis; therefore, the trial court reasoned that, pursuant to the

general prefatory language of section 627.736(1), 7 Progressive was required to

make available the full $10,000 medical benefit.

As always, we are guided by the polestar of legislative intent when called

upon to construe a statute. Borden v. East-European Ins. Co.

, 921 So. 2d 587, 595

(Fla. 2006). In the instant case, the trial court’s interpretation of the statute would

render section 627.736(1)(a)3.’s requirement of an EMC diagnosis meaningless if

we were to hold that the $10,000 limit was available to injured claimants without

any EMC diagnosis. Section 627.736(1)(a)3. expressly requires such a diagnosis to

trigger the full $10,000 availability. We construe related statutory provisions in

pari materia

, and do not construe statutes so as to render related provisions

meaningless. Id. at 595. Therefore, we hold that when no EMC diagnosis has been

provided by an authorized medical provider as required by section 627.736(1)(a)3.,

the available PIP medical benefits are limited to $2,500.

We note that other appellate courts that have faced this issue to date have

reached the same conclusion. Robbins v. Garrison Prop. & Cas. Ins. Co.

, 809 F. 3d

583 (11th Cir. 2015); Med. Ctr. of Palm Beaches v. USAA Cas. Ins. Co.

, 202 So.

3d 88 (Fla. 4th DCA 2016).

7 “REQUIRED BENEFITS. Every insurance policy complying with the security

requirements of s. 627.733 shall provide personal injury protection to the named

insured

. . . to a limit of $10,000 for loss sustained by any such person as a result of

bodily injury, sickness, disease

. . . .” § 627.736(1), Fla. Stat. (2013).

13III. Conclusion

For the reasons stated above, we reverse the trial court’s grant of summary

judgment, and conclude that section 627.736(1)(a)3. of the Florida Statutes

violates neither the equal protection clause nor the due process clause; and we

further conclude that absent an affirmative EMC diagnosis, the available medical

benefit limit for PIP insurance is $2,500. We remand for proceedings consistent

with this opinion.

Certified question answered in the negative. Reversed and remanded.

14